The ACTA is currently being negotiated by the U.S. government and 11 other foreign governments, and is intended to be enacted in the U.S. by executive order, which would bypass the normal Congressional oversight that treaties normally have. At issue is a policy by the USTR to keep the substance of the agreement away from the American people, though it has allowed IP and business trade organization into the process.

The EFF made a Freedom of Information Act (FOIA) request for the release of documents relating to the negotiations, which resulted in the release of 159 pages our of more than 1450 pages, according to the EFF. The remaining 1300 pages have not been released, and the EFF is suing under the FOIA to gain their release.

What some will find troubling is that among the documents that were released was information that the official policy of the USTR under the Bush administration was to keep all documents relating to the agreement secret, and that it would even "hold ACTA documents in confidence for a fixed period after negotiations conclude." [Emphasis added]

This is stark contrast to Barack Obama's memorandum to the executive branch that all agencies, "should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government."

The EFF has said it intends to ask the court handling the FOIA lawsuit from the EFF to stay any further actions, "pending the release of new guidelines by the Attorney General implementing President Obama's January 21 memorandum." In other words, the EFF is hoping that the memorandum will change the way the USTR is handling this treaty.

The group's concern is that the ACTA could give IP interests (big media companies, record labels, movie studios) increased power with the U.S. to snoop into citizens Internet usage in the fight against piracy. Those powers could include mandating that ISPs monitor Internet traffic, filter Internet traffic, and hand over personal information about their customers at the demand of IP interests.

These sorts of tools would deprive American citizens of some due-process rights, according to the EFF, as well as many privacy rights. Since the agreement would definitely bypass the normal Congressional oversight process, the EFF hopes to allow more citizen feedback about this agreement before it is implemented.